(Reuters) – Bayer AG plans to claim that a $ 2 billion jury award and thousands of US trials claiming its glyphosate-based weed killer Roundup cause cancer should be discarded because an American regulatory agency said the herbicide is not a public health risk.
Some legal experts believe that Bayer will find it difficult to convince the appeal courts to cast out judgments and lawsuits for these reasons. Bayer has a better shot if a business-friendly US Supreme Court raises the matter, experts said. But it can take years.
Bayer has come under intensifying pressure after a third consecutive US jury on Monday, Roundup found carcinogenic and awarded more than $ 2 billion to a couple who used the chemical on their property ̵
Bayer, Who acquired the Roundup disputes with its $ 63 million acquisition of Monsanto last year, faces appeals of more than 13,400 plaintiffs across the country, claiming the product causes cancer.
The German company's shares have been hampered since the first Roundup judgment against cancer in August in August, by wiping out about EUR 40 billion ($ 44.76 billion) in market value and leaving Bayer less than the price it paid for Monsanto.
Bayer denies that Roundup causes cancer, says decades of studies have shown glyphosate and weed the killer to be safe.
On Wednesday, the company said it will argue that the trials, taken under state aw, conflict with guidance from a federal agency, the US Environmental Protection Agency.
On April 30, EPA confirmed earlier guidelines that glyphosate is not carcinogenic and does not pose a risk to public health when used under its current label
. Referring to the EPA decision, Bayer has repeatedly questioned the complainant's call to add a cancer warning to Roundup and said the agency would reject that change.
According to the legal declaration on childbirth, state law requirements are blocked if they conflict with federal law.
"We have very strong arguments that the requirements here are set forth … and the latest EPA registration decision is an important aspect of that defense," said William Hoffman, one of Bayer's lawyers, during a conversation with reporters on Wednesday. Mr Hoffman said that the argument is applied to all US Roundup trials.
Preview is generally considered a "silver bullet defense" because it ceases to assert claims across the board, says Adam Zimmerman, a lawyer at the Loyola Law School in Los Angeles.
But Mr. Zimmerman and three other legal experts agreed that Bayer is facing a major obstacle convincing appeal courts that the EPA glyphosate decision protects it from state law requirements.
They cited a Supreme Court in 2005 claiming that EPA's approval of a product does not necessarily require state law requirements. The ruling Bates v. Dow Agrosciences provides a great deal of space for lawyers to decide whether such claims would continue, they said.
Judges in the three Roundup cases that have been challenged against Monsanto rejected all of the company's conciliation arguments, citing this judgment.
"In the light of the decision on Bates, it will be an upward blow to the company to win in pre-voting on appeal," Zimmerman said.
Bayer also said it will argue for appeal that court trials wrongly recognized evidence that was not backed up by science. But legal experts said that appeals courts generally postpone lower court rulings.
Sore thumb & # 39;
Lars Noah, jur. Professor at the University of Florida said that Bayer's chance of success would increase significantly if the Supreme Court raises Roundup appeals.
The Supreme Court only accepts about 70 cases each year, but a business-friendly majority in the court may be inclined to hear the dispute, says Alexandra Lahav, lawyer at the University of Connecticut.
Since 2005, the Supreme Court has decided at least three preliminary rulings in favor of companies, none of which involved EPA.
The Supreme Court will soon rule in another case due to whether an American Food and Drug Administration approves claims.
In that case, the plaintiffs brought Merck & Co. over the company's alleged failure to warn of the risk of serious bone fractures associated with its osteoporosis drug Fosamax.  Merck, who denies claims, claimed that the trials should be preceded because the FDA did not require an additional fracture warning in the prescription information of the drug.
In a statement on Thursday, Bayer said it did not believe that the Bates Court in 2005 constituted an obstacle to the courts of appeal because of other supreme court rulings since then.
] Mr. Noah agreed that the court has recently stated its appetite to limit trials that oppose the views of supervisory experts.
"The Bates decision now stays like a sore thumb," Noah said. "Bayer has more than enough ammunition in the latest supreme court cases to show the judgments were wrong."